*1 Appellant, ORTEGA, ANNETTE DANIEL TROOPER Individually Capacity, and in His Official REYNA, Respondent.
No. 27592 January P.2d 18 Offices, Potter Law Las Vegas, Appellant.
Frankie Sue Del A. General, Papa, Attorney Dufy, and Laurel General, Deputy Attorney City, Carson for Respondent.
OPINION Court, Shearing, theBy J.:
Appellant Annette Ortega filed a complaint against respondent Daniel Reyna individually, and in his official capacity as a Nevada Highway Patrol trooper, to recover for injuries sustained after a traffic stop. Appellant’s complaint alleged causes of action for unlawful and arrest detention in violation of 42 U.S.C. § 1983.1Appellant arrest, also raised state law claims of false false imprisonment, distress, intentional infliction of emotional mali cious prosecution, negligent infliction of emotional distress.
The trooper
summary judgment,
filed a motion for
relying on
doctrine of
with
qualified
respect
appellant’s
1Respondent, acting in
capacity,
his official
“person”
is not a
under 42
U.S.C.
may
§ 1983 and therefore
not be
capacity
sued in his official
in state
court under the
federal civil
Injured
statutes. See Northern Nev. Ass’n
SIIS,
108, 114,
Workers v.
(citing
Will v.
Police,
Michigan
Department
(1989)).
of State
Willdoes not
prohibit
against
acting
claims
officials
capacity,
an individual
however. Id.
at
section 1983 and on the to the waiver of exception state sovereign immunity to NRS 41.032 with pursuant respect state law The appellant’s granted claims. district court the troop- er’s motion for summary judgment, that there concluding was no dispute as to the fact that the trooper arrested because she refused to the citation. We conclude that the district court granted properly summary judgment in favor respondent’s and affirm.
FACTS 5, 1992, July On at approximately 11:00 p.m., Trooper Reyna a car stopped driven appellant. trooper’s version of what after happened differs from stop appellant’s. According to the affidavit, he stopped appellant making a left hand turn where there was a “no left turn” in her sign. Appellant, complaint, contends that there was no sign prohibiting a left hand turn at the intersection.2 According to he informed trooper, appellant that he was going give her a ticket for a left making hand turn and explained the citation to her. does not *3 contradict this statement. The trooper states that he told appellant that her signature on the citation was not an admission of guilt. affidavits, however, According to appellant’s the never trooper told her that the signing citation was not an admission of guilt. Appellant states that she the questioned trooper about whether the signing citation was an guilt. admission of The states trooper citation; that the appellant sign states that she appellant never refused to sign.
According to the he then advised that if she trooper, appellant citation, jail, did not he would arrest her and take her to sign jail.” to which “Go ahead and take to appellant responded, me does not that the told her that he would Appellant dispute trooper citation, deny arrest her if did and does not sign she not manner that the responding trooper alleges.3 her, arrested handcuffed and her to the Las appellant, transported 484.335, Vegas jail violating where she was booked for turn” making sign. a left turn where there was a “no left arrested, with the pleaded states that after she was she citation, to her but the would not allow was arrested he sign, her to and told her that once she permit 2Appellant does not claim a violation of her arising constitutional Rather, from stop. appellant arguments her confines to the constitutional ity subsequent of the arrest. that in his affidavit respect 3With to the statement only opening her brief challenged jail, appellant him to take her to states hardly “alleged that her statement is believable.” 58
could not “unarrest” her. Appellant states that she never saw the citation, the trooper never issued her the and she never had an opportunity husband, it. sign Appellant’s who was in the car with her at the time of the stop, corroborates appellant’s account of what took place.
DISCUSSION We review de novo the district court’s order granting summary judgment Zubel, 972, in respondent’s Day favor. v. 112 Nev. 977, 536, (1996). P.2d 922 539 Summary judgment is only when, appropriate after a review of the record viewed in a light most favorable to the nonmoving there party, remain no genuine 56(c); issues of material fact. NRCP Butler v. Bogdanovich, 101 449, 451, 662, Nev. 705 P.2d 663 “Properly supported factual allegations and all reasonable inferences of the party opposing summary However, judgment must be accepted as true. conclusory statements with along general allegations do not cre- ate an Sudeck, 332, issue of material fact.” Michaels v. 334, (1991) (citation Further, 810 P.2d omitted). “ the facts set forth in support of a motion for summary [i]f judgment are not by controverted the opposing then party, those Weber, facts are presumed to be true.” Tamsen v. (Ariz. Thus, 1990). Ct. App. we accept appellant’s must properly supported allegations and make all reasonable infer- ences in her favor in determining whether respondent is entitled However, judgment aas matter of law. where has controverted the trooper’s account of what happened, we have taken his facts as undisputed.
Section claim To state a cause of action under 42 U.S.C. § law, must show that acted under color of state (2) the her trooper deprived of rights secured the United States Constitution or federal law.4 Cummings Charter Hospital, *4 639, 647, 1137, Nev. (1995); 896 P.2d 1142 Boulder v. City Assocs., 238, 245, 320, Cinnamon Hills 324 (1994). The do not parties that the dispute acting was provides part:
4 42U.S.C. in 1983 § ordinance, who, statute, Every person regulation, under color of custom, Columbia, Territory usage, or or of State or the District of subjects, subjected, any or causes to be citizen of the United States or person jurisdiction deprivation other within the thereof to the of laws, rights, privileges, or immunities secured the Constitution and law, party injured equity, the in in shall be liable to an action at suit or proceeding proper other for redress.
59 rather, under color of state law when he arrested the appellant; parties focus on whether the of her trooper deprived appellant rights. constitutional contends that her arrest was in Appellant violation of the Fourth Amendment to the United States Constitu- tion, under which right to be free from an unreasonable seizure clearly and the use of excessive force is established. Appellant argues that the her ques- arrested because she tioned authority, his and adds that the violated her. arresting genuine 484.795 contends that issue of material fact exists as to whether the told her that her signature on the citation was not an of and that if guilt admission she did not sign citation he would arrest her. on Respondent, hand, the other contends that failed to depriva- show tion of a clearly established federal right.
In granting summary judgment in favor respondent, of district (1) court found that it was undisputed that the trooper arrested appellant because she sign appellant’s argument that she refused to the citation because she was not informed that her signature was not an admission of guilt is unfounded because statement printed signa- below the ture line gave her that information. The court did not discuss its findings in the context immunity, of qualified and did not explic- itly determine that the trooper was immune from suit as to either the federal or the state claims. We assume that the court impliedly concluded that the trooper was immune from suit as to both the state and federal claims. Police officers who are sued under 42 U.S.C. 1983 for false § 335,
arrest have qualified immunity. Malley v. 475 Briggs, U.S. (1986). doctrine, Under the qualified immunity “government officials performing discretionary . . . are functions shielded from liability for civil damages insofar as their conduct does not clearly violate statutory established constitutional of which a person reasonable would have known.” Harlow Fitzgerald, pertinent inquiry whether an determining immunity officer is entitled to qualified for a Fourth Amendment violation is whether a reasonable officer could have believed clearly his conduct lawful under the estab- lished principles governing law that conduct. Alexander v. County (9th 1995). of Los F.3d Angeles, 64 Cir. An allegation of malice is sufficient to defeat if the officer acted in an objectively reasonable manner. Hansen v. Black, (9th 1989). 885 F.2d Cir. established, In whether the law determining clearly “[t]he
operation of this standard . . . depends substantially upon generality level of at which the relevant ‘legal rule’ is to be *5 Creighton, identified.” Anderson v.
The which the official to have violated “must be right alleged is sufficiently clear that a reasonable official would understand that doing what he is violates that Id. at 640. The issue is “the right.” (albeit whether a reasonable offi- objective fact-specific) question cer could have believed [appellant’s] warrantless to be [arrest] lawful, light clearly in of established law and the information the officerQ way, . . . Id. at another we look possessed.” 641. Stated cause, not at whether there was an arrest without but probable reasonably rather whether the could have believed that trooper light clearly his conduct was lawful in established law and the Alexander, totality of the circumstances. 64 F.3d at Under 1319. this we conclude that the entitled to approach, trooper qualified immunity. allegations, as true
Accepting appellant’s properly supported facts, as well as the uncontroverted the trooper stopped he an appellant because believed that she had made a left turn at where sign. trooper intersection there was a “no left turn” told that he appellant going give explained was her a ticket and the signing citation to her. The did not tell that trooper appellant the citation was not an guilt, appellant ques- admission of and tioned the about this. The advised that trooper trooper appellant citation, if sign she did not he would arrest her and take her to that the her jail. Appellant responded jail, should take trooper whereupon the did so. we as true Although accept appel- citation, actually lant’s assertion that she never we reasonably conclude that the believed that had to sign arguable probable refused and that he had cause to her. arrest contends, however, that the trooper violated NRS in her that forth arresting specific
484.795 because statute sets magistrate, situations where a must take a before a person Thus, and did not fit into of these categories. that argue arguable seems to did not have her probable disagree. cause to arrest under this statute. We provides 484.795 in full:
Whenever officer any person peace is halted violation of this and is not to be taken chapter required magistrate, may, before a in the discretion of person officer, a traffic or be taken given either be peace He unnecessary delay magistrate. without before the proper following be of the magistrate must taken before cases: evi- satisfactory does not furnish
1. the person When has reasonable when the officer identity peace dence of disregard will the person to believe probable grounds court; promise appear written *6 a violation of NRS charged with 2. When the is person to 484.701, driver of a vehicle to the refusal of a relating test; inspection submit the vehicle to an of NRS with a violation charged 3. When the is person 484.755, a driver of a or refusal of to the failure relating or to weighing load to a the vehicle and vehicle submit therefrom; or weight remove excess of NRS is with a violation charged 4. When the person 484.379, treated for being and is incapacitated unless he is otherwise be officer would peace at the time the injuries magistrate. him before the taking persons stopped to arrest This statute an officer discretion gives them a citation. Conse- giving in lieu of for traffic violations here, had trooper presented under the circumstances quently, stat- to this appellant pursuant cause to arrest arguable probable ute.
Further, pursuant to arrest authority had trooper in full: provides, to NRS NRS 484.793 484.793. halted a officer by peace
Whenever is person misde- amounting gross to a chapter violation of this unnecessary be taken without felony, meanor or he shall in NRS specified as delay magistrate, before the proper 484.803, cases: following in either of the immediate appearance demands an person
1. When before a magistrate; a traffic is issued person other event when the
2. In his give and refuses to person citation an authorized in NRS promise appear provided as court written 484.799. trooper challenge did not
Even if we assume that the same. would remain her to our conclusion jail, take if she magistrate to take before obligated was an immediate if demanded the citation or she case, reasona- In this magistrate. before appearance Therefore, the had occurred. one of these events bly believed that under to arrest appellant cause arguable probable had that we conclude Accordingly, NRS 484.793. properly the district court and that immunity, to qualified entitled claim. to this respect favor with in his summary judgment entered State law claims With respect claims, to appellant’s state law we conclude that
the trooper is immune from suit here as well. State immunity is a
law,
defense to claims made under state
not a defense
anto
action
under section 1983.5 The state waives its immunity under NRS
41.031, but
retains
under NRS 41.032 for officials
exercising discretion.6 A “discretionary act” is one which
requires
deliberation,
“exercise of personal
decision and judg-
ment.”
Reno,
Travelers Hotel v. City
343, 345-46,
The record shows that the trooper
used his judgment in
stopping appellant,
concluding that appel-
lant
refused to sign the traffic
and in taking appellant to
after
jail
arresting her. See Maturi v.
Vegas
Las
Metro. Police
Dep’t, 110 Nev.
CONCLUSION We conclude that the district court properly entered summary judgment in respondent’s favor with respect to the federal and state law claims. Accordingly, we affirm the order of the district court.
Young JJ., concur. Maupin, California, 5Martinez v. (1980) (states 444 U.S. 284 may n.8 not interpose immunity state liability doctrines to limit or defeat in 1983 § actions); Casey, accord Felder v. (“[A] 487 U.S. state law government that immunizes subject conduct otherwise to suit under 1983 is § preempted, even where the litigation federal civil place takes in state court, application because the of the state law would thwart the congressional remedy, already provides which of course certain immunities (citation omitted)). for state officials.” 6NRS provides, 41.032 part, as follows: may brought action against [N]o be . . . an immune contractor or an officer employee or any of the agencies state or of political its or subdivisions which is: 2. upon Based performance the exercise or or the failure to exer- perform cise discretionary or a duty part function or on the of the state or agencies officer, of political its or subdivisions or of
employee these, immune contractor of whether or not the discretion involved is abused. J., Rose, J., C. Springer, with whom agrees, dissenting: Trooper Reyna liability not immune from section if a reasonably competent officer the same pos- circumstances and sessing the knowledge same as the have trooper would concluded that probable cause to arrest appellant pursuant to NRS 484.793 not did exist. See Anderson Creighton, Viewing evidence in light most favorable to we are appellant, compelled as in reviewing summary to do a judgment, see the we following appellant facts: was not a issued citation, citation, did not refuse to a and appellant husband, never saw a citation. who was in car Appellant’s with at the time of the traffic stop, also stated that not appellant was issued a that she sign, did not refuse to and that she never saw a citation. grants NRS a peace 484.793 authority officer to a arrest a person who is issued traffic citation and refuses give a promise appear written in court. NRS See 484.793. If never appellant was issued a traffic citation and did give refuse to a written then promise appear, probable Thus, cause to arrest her pursuant to this did not statute exist. reasonable trooper would not have probable concluded that cause Therefore, existed to arrest under appel- 484.793. lant has presented specific facts sufficient to create a genuine issue of material fact concerning conduct and the reason, surrounding circumstances her arrest. For this I would reverse the summary order of judgment and remand to the district court further proceedings. Corpora- RENTALS,
BUSINESS
COMPUTER
Nevada
TREASURER,
tion, Petitioners,
v. STATE
ROBERT
Respondents.
SEALE,
L.
No. 30426
*8
January